dissenting:
I respectfully dissent from the decision reached by the majority. I believe that the complaint contains allegations sufficient to demonstrate that the cable company committed an unfair trade practice by failing to make public its practice of refunding for service outages and by failing to comply with the terms of its subscription agreements to refund for service outages caused by circumstances within its control.
This case was instituted as a class action by cable television subscribers to recover against a cable television company for, among other things, its alleged violation of the Unfair Trade Practices and Consumer Protection Law (the “Act”), 73 P.S. 201-1, et seq. The trial court sustained the cable company’s preliminary objections to the complaint, determining that appellants had failed to state a claim upon which relief could be granted.
Our standard of review when the trial court has granted preliminary objections follows:
A preliminary objection in the nature of a demurrer admits every well-pleaded fact and all inferences reasonably deducible therefrom. McGaha v. Matter, 365 Pa.Super. 6, *3268, 528 A.2d 988, 989 (1987); Pike County Hotels, Corp. v. Kiefer, 262 Pa.Super. 126, 133, 396 A.2d 677, 681 (1978). It tests the legal sufficiency of the challenged complaint and will be sustained only in cases where the pleader has clearly failed to state a claim for which relief may be granted. Mudd v. Hoffman Homes For Youth, Inc., 374 Pa.Super. 522, 524, 543 A.2d 1092, 1093 (1988).
Kelly-Springfield Tire Co. v. D’Ambro, 408 Pa.Super. 301, 303, 596 A.2d 867, 868 (1991), quoting Creeger Brick v. Mid-State Bank, 385 Pa.Super. 30, 32-33, 560 A.2d 151, 153 (1989).
In the present case, the complaint includes the following allegations. The cable company provides cable services to its subscribers for a monthly fee. The subscription agreements provide that the company is not responsible for damages if service is interrupted due to strike, war, riot, insurrections, commotion, fire, flood, accident, storm, act of God, or other cause beyond the control of the cable company. The cable company’s practice is to limit refunds for service outages within its control to customers only if those customers complain, and it never has told its. subscribers that they can, in certain circumstances, obtain refunds for outages.
I believe that this practice is an unfair trade practice under the Act. A fair reading of the subscription agreements leads to the conclusion that the cable company is liable for damages, i.e., loss of service, for any service interruptions which are within its control. The agreement expressly limits the company’s liability for damages only when service is interrupted due to enumerated circumstances, all of which are beyond the control of the company. Thus, the company, by necessary implication, agreed to give customers damages for service outages which are within its control.
Its alleged refusal to do so under the agreements is a breach of those agreements and an unfair trade practice under the Act since the Act defines an unfair trade practice to include “[flailing to comply with the terms of any written guarantee or warranty given to the buyer at, prior to or after a contract for the purchase of goods or services is made.” 73 *327P.S. § 201-2(xiv). That the company had an unpublished practice of issuing a credit to customers who complain reinforces the interpretation of the contract that the company is responsible for refunds when service is interrupted due to equipment and other failures within its control. The company should have made all of its subscribers aware of this practice. Accordingly, I dissent.